Citation Nr: 1637422 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 09-49 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for tinnitus. 2. Entitlement to an initial evaluation in excess of 10 percent for hyperacusis of the right ear. 3. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1975. These matters come before the Board of Veterans Appeals (Board) from April 2009, December 2010, and March 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In August 2010, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing has been associated with the claims file. Because the Veteran disagreed with the initial ratings assigned following the awards of service connection tinnitus and hyperacusis, the Board has characterized these matters consistent with Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). This case was previously remanded by the Board in April 2011 and September 2012 for further development. The September 2012 remand also addressed the issue of entitlement to service connection for right ear hearing loss which was granted by the Agency of Original Jurisdiction (AOJ) in October 2015. As the grant of service connection is a complete grant of the benefit sought, the issue of entitlement to service connection for right ear hearing loss is no longer on appeal. The Board observes that the Veteran was previously represented by counsel but in October 2015, prior to receipt of the case at the Board, the Veteran's counsel withdrew as representative and the AOJ notified the Veteran's counsel that he was no longer the representative. Thus, the Board will treat the Veteran as a pro se appellant. In December 2015, the Veteran submitted additional evidence with a waiver of review and the Board may properly consider such newly received evidence. 38 C.F.R. § 20.1304(c) (2015). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's service-connected tinnitus is currently assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260, and the rating schedule is adequate to evaluate such disability. 2. Resolving doubt in favor of the Veteran, the Veteran's service-connected right ear hyperacusis, manifested by ear pain, sensitivity to noise, dizziness, falling down, and feeling as if he is going to faint at times, is analogous to a peripheral vestibular disorder with dizziness and occasional staggering; however, the Veteran's disability is not analogous to Meniere's disease. 3. The schedular criteria are adequate to evaluate the Veteran's tinnitus and hyperacusis at all points pertinent to this appeal. CONCLUSIONS OF LAW 1. The assignment of an initial rating in excess of 10 percent for tinnitus is not warranted. 38 U.S.C.A. §§ 1155 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.25, 4.87, Diagnostic Code 6260 (2015). 2. Resolving doubt in favor of the Veteran, the criteria for an initial rating of 30 percent, but no higher, for service-connected hyperacusis analogous to peripheral vestibular disorder, are met. 38 U.S.C.A. §§ 1155 , 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.321, 4.1, 4.3, 4.7, 4.87, 4.124a Diagnostic Codes 6204-05, 8207 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board notes that effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23.353-23.356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In this appeal, in pre-rating letters dated in April 2003 and March 2004, regarding hyperacusis, as well in a pre-rating letter dated in October 2009 regarding tinnitus, the AOJ provided notice to the Veteran explaining what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA, as well as general information pertaining to VA's assignment of disability ratings and effective dates, and the type of evidence that impacts those determinations, consistent with Dingess/Hartman. As these appeals are arising from awards of service connection, the notice that was provided prior to the grant of service connection was legally sufficient and the VCAA's notice requirements have been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The April 2009 and December 2010 RO rating decisions reflect the initial adjudication of the claims after issuance of these letters. Furthermore, although no additional notice for the downstream initial rating issues was required under 38 U.S.C.A. § 5103A (see VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004)), in this case, after the award of service connection and the Veteran's disagreement with the initial rating assigned, the December 2009 SOC (regarding hyperacusis) and the April 2013 SOC (regarding tinnitus) set forth the criteria for higher ratings and rating considerations relevant to tinnitus and hyperacusis (the timing and form of which suffices, in part, for Dingess/Hartman), and included the provisions of 38 C.F.R. § 3.321, governing extra-schedular consideration. Thereafter, the Veteran was afforded an appropriate opportunity to respond to the additional notice provided. Relevant to the duty to assist, the Veteran's service treatment records and post-service VA and private treatment records as well as VA examination reports have been obtained and considered. VA also attempted to obtain any outstanding medical records in the possession of the Social Security Administration (SSA) but in May 2011, and again in March 2013, the SSA informed VA that the records had been destroyed. The Veteran was informed of this fact in a September 2011 letter and again in the October 2015 supplemental statement of the case. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran has been afforded multiple VA examinations, to include those conducted in April 2009 (hyperacusis), December 2010 (tinnitus), June 2011 (hyperacusis - cranial nerves), October 2014 (audiological), and April 2015 (hyperacusis) to determine the severity of his tinnitus and hyperacusis disabilities. The April 2009 VA examination report is adequate for rating purposes as it included review of the claims file, private and VA treatment records, and a thorough interview with the Veteran. The December 2010 VA examination report is inadequate as it pertains to an increased rating for tinnitus as there was no discussion of the functional effects of the Veteran's tinnitus. However, the Veteran was afforded a subsequent audiological examination and that report contains discussion of the functional effects of the disability. Additionally, although the December 2010 VA examination was primarily intended as an audiological examination for hearing loss and tinnitus, to the extent that the examiner addressed tests concerning hyperacusis, the Board finds the examination adequate as the examiner conducted thorough testing and an interview with the Veteran. As discussed in the September 2012 remand, the Board previously found the June 2011 (hyperacusis) VA examination report to be incomplete and an addendum opinion was sought. With respect to the October 2014 (audiological) and April 2015 (hyperacusis) VA examination reports, the Veteran has not alleged that the VA examinations are inadequate for rating purposes. The October 2014 VA audiological examination addressed both the Veteran's hearing loss disability (not presently on appeal) and tinnitus and included a comprehensive discussion of the functional effects of his hearing loss and tinnitus, including the fact that he had to quit working as a bartender and that the ringing in his ears associated with tinnitus had gotten louder since September 2012. For all of these reasons, the Board finds that the October 2014 VA examiner substantially complied with the Board's remand and discussed the Veteran's functional effects in accordance with Martinak v. Nicholson, 21 Vet. App. 447, 453-4 (2007), even though the specific effects of tinnitus alone were not separately delineated. Further, to the extent that the Veteran claims that his tinnitus renders him unemployable, his contentions are addressed in the Remand below concerning the TDIU claim. Further, with respect to the claim for a higher initial rating for hyperacusis, the Board finds that the April 2015 VA examination report is adequate as the examiner reviewed the record, including private and VA treatment records, conducted an interview with the Veteran and full examination. Moreover, all of the examination report addressed the relevant rating criteria (including analogous rating codes) and contains information sufficient to assess the manifestations and functional impairment resulting from the Veteran's hyperacusis. The Board acknowledges the April 2015 VA examiner's statement that, if he were treating the Veteran, he would consider additional testing to rule out underlying causes such as superior semicircular canal dehiscense syndrome, fistula, and syphilis. The examiner indicated that the tests may reveal an underlying cause or assist in further assessing the severity of potential cranial nerve impairment. However, the examiner did not indicate that such testing was necessary in order to form an opinion as to whether the Veteran's disorder was analogous to Meniere's disease - the question for which the examination was undertaken. Significantly, the examiner accepted all of the Veteran's contended symptoms as being connected to the same underlying disability and did not indicate that there were any claimed symptoms that could not be associated with the disability without further testing. The Board has resolved doubt and is herein considering all of the Veteran's contended symptoms in its decision to grant an initial rating of 30 percent for hyperacusis. (Of note, the highest schedular rating under DC 8207 is 30 percent). For these reasons, the Board finds that the April 2015 VA examination report is an adequate report upon which to base a rating decision and a remand for further testing would only unduly delay resolution of the claim. Moreover, the Veteran has not alleged that his tinnitus or hyperacusis has worsened in severity since the most recent VA examinations. Rather, with respect to such claims, he argues that the evidence reveals that the disabilities have been more severe than the currently assigned ratings for the duration of the respective appeal periods. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claims for higher initial ratings and no further examination is necessary. Regarding the initial rating for hyperacusis, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge in August 2010. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the Board finds that there has been substantial compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that the hearing was legally sufficient. Here, during the August 2010 hearing, the undersigned identified the issue on appeal and solicited testimony from the Veteran with respect to the severity of his hyperacusis, current treatment, and whether there was any outstanding evidence to support the claim. In this regard, testimony was elicited regarding the specific symptoms associated with the disability as well as the Veteran's description of the effects on his daily activities. Additionally, during the hearing, the Veteran's then-representative set forth the arguments for the appropriate rating code and amount of disability rating that the Veteran seeks for the hyperacusis disability. Therefore, not only was the hyperacusis issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were fully explained. See Bryant, 23 Vet. App. at 497. Of note, at that time, the merits of the tinnitus claim were not before the Board. The Board sought further development of the claims on appeal in April 2011 and September 2012, to include obtaining additional medical evidence and providing the Veteran with a VA examination. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In April 2011, the Board remanded the hyperacusis claim for a VA examination and to obtain SSA records. The merits of the tinnitus claim were not before the Board at that time. As discussed above, the SSA records were destroyed and the Veteran was informed that the records were not available. Further, although the Board found the June 2011 VA examination to be incomplete, a subsequent remand resolved any deficiency. In the September 2012 remand, the Board instructed the AOJ to issue a statement of the case (SOC) with respect to the appeal for a higher rating for tinnitus. The AOJ complied with this directive in April 2015 and the Veteran perfected his appeal with respect to the issue in June 2015. The September 2012 remand also instructed the AOJ to obtain and associate with the claims file any outstanding VA treatment records. These records have been associated with the claims file. The AOJ was also directed to arrange for the Veteran to undergo a VA examination with respect to his hyperacusis. As noted above, this examination was completed in April 2015. As discussed above, the Board finds the examination report to be adequate. The claims were readjudicated in an October 2015 supplemental statement of the case. The September 2012 remand also referred the issue of entitlement to service connection for schizophrenia, including as on a secondary basis. The AOJ complied with the referral and adjudicated the claim in July 2013. Accordingly, the Board finds that, with respect to these higher initial rating claims, the AOJ substantially complied with the Board's remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268, where Board's remand instructions were substantially complied with); see also D'Aries v. Peake, 22 Vet. App. 97, 105-06 (2008) (finding that substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). In summary, the duties imposed by the VCAA have been considered and satisfied. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis, supra at 430 (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has also held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Board has reviewed all of the evidence of record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. A. Tinnitus The Veteran seeks an initial evaluation in excess of 10 percent for tinnitus. He contends that he is entitled to a 20 percent disability rating for bilateral tinnitus. He argues that he should have 10 percent awards for tinnitus in each ear. See January 2011 statement. Tinnitus is evaluated under Diagnostic Code 6260, which assigns only a single evaluation for recurrent tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, note 2. The United States Court of Appeals for the Federal Circuit has affirmed VA's long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10-percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Citing Supreme Court precedent, the Federal Circuit explained that an agency's interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations. Id. Finding that there was a lack of evidence in the record suggesting that VA's interpretation of Diagnostic Code 6260 was plainly erroneous or inconsistent with the regulations, the Federal Circuit concluded that the Court erred in not deferring to VA's interpretation. Thus, with respect to the case presently on appeal, a 10 percent rating is the maximum rating assignable for the Veteran's tinnitus, and an increased schedular rating is not available. In cases such as this, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law notwithstanding the Veteran's contentions. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As no higher schedular rating is available, the Board has considered the application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. The Board has also considered the adequacy of the VA examinations with respect to whether the Veteran's tinnitus should be referred for an extraschedular rating. In Martinak v. Nicholson, 21 Vet. App. 447, 453-4 (2007), the Court held that a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the examination to facilitate determinations regarding extraschedular consideration. The Court noted that, unlike the rating schedule for hearing loss disability, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether an extraschedular rating is warranted. See Martinak, 21 Vet. App. at 455 . As discussed above, the December 2010 VA examination report did not adequately address the functional effects of tinnitus; however, the October 2014 VA audiological examiner noted all of the Veteran's functional effects of tinnitus. In this regard, the examiner noted the Veteran's reported functional effect that he worked as a bartender but that he eventually quit due, in part, to his tinnitus as well as other noise-related disabilities. Further, the report noted the Veteran's observation that his tinnitus had gotten louder since September 2012. The functional effects noted in the October 2014 VA examination report are consistent with reports noted in a March 2013 VA outpatient treatment record. In March 2013, the Veteran reported that he experienced tinnitus 24 hours a day, seven days a week, and that the tinnitus is a steady ringing with consistent volume that is persistent, without varying intensity. The Veteran also reported that his tinnitus became much worse, inexplicably, in September 2012. Based on these reported descriptions of the functional effects of the Veteran's tinnitus, the Board finds that the Veteran's statements and the VA examination reports are in compliance with Martinak, and that the evidence of record is sufficient for the Board to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b). Under Thun v. Peake, 22 Vet App 111 (2008), decided after the Court's decision in Martinak, a three-step inquiry is required to determine whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for tinnitus is inadequate. A comparison between the levels of severity and symptomatology of the Veteran's tinnitus with the established criteria found in the rating schedule for tinnitus shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology; as discussed above, the rating criteria includes recurrent tinnitus. The 10 percent evaluation for recurrent tinnitus is an acknowledgement of the bothersomeness of that disorder and its interference to some extent, with daily and occupational functioning. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. In any event, the Board observes that, even if the available schedular evaluation for the Veteran's tinnitus were inadequate [which it manifestly is not], the Veteran does not exhibit other related factors such as those provided by the regulation. The Board has been unable to identify an exceptional or unusual disability picture. In reaching this conclusion, the Board has considered the Veteran's reports noted above, including that he is bothered by the ringing in his ears, that the ringing has gotten louder, that the ringing is steady and persistent without varying intensity, and that he quit his job as a bartender due, in part, to his tinnitus. However, the Board finds that the functional effects caused by the Veteran's tinnitus do not constitute any exceptional or unusual disability picture warranting consideration of an extraschedular rating. Moreover, to the extent that the Veteran's tinnitus affects his employability, such is addressed in the remand below regarding entitlement to a TDIU on an extraschedular basis. Further, the Board notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. However, in this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific service-connected disability. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. In short, there is nothing in the record to indicate that the Veteran's service-connected tinnitus causes impairment over and above that which is contemplated in the assigned schedular rating. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. B. Hyperacusis In this case, service connection for the Veteran's right ear hyperacusis was granted in April 2009 and assigned a 10 percent disability rating, effective in January 2002. The Veteran has argued that he is entitled to an initial 30 percent disability rating for daily dizziness and falling down associated with his hyperacusis. See Veteran's statements dated in January 2009, May 2011, and June 2011. The Board agrees. For the reasons explained below, finds that the Veteran is entitled to a 30 percent disability rating, but no higher, rated analogous to a peripheral vestibular disorder under Diagnostic Code 6204. As an initial matter, the Board notes that hyperacusis does not have a specific diagnostic code under which it is rated. In this case, the Veteran's disability has been rated under Diagnostic Codes (DCs) 8299-8207, analogous to cranial nerve impairment. In reaching the decision to grant an initial rating of 30 percent, but no higher, the Board has considered the criteria listed in DC 8207 as well as other potentially applicable diagnostic codes, including DC 6204 and 6205. The Board observes that any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In this case, the Veteran's hyperacusis disability has been in effect for more than 10 years and thus, is protected under 38 U.S.C.A. § 1159. However, the present change in diagnostic code does not affect the protected status of the Veteran's hyperacusis disability. See VAOPGCPREC 13-92. In this regard, the same disability was involved in both the initial disability determination and the present identification of a more applicable diagnostic code that better addresses all of the Veteran's symptoms. His disability is still service connected even though the diagnostic code is changed herein. See Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011). In determining the diagnostic code most analogous to the Veteran's hyperacusis, the Board has considered the January 2009 statement cited above, in which the Veteran described cited symptoms listed under DC 6204 for rating peripheral vestibular disorders. Additionally, the Board has considered argument presented during the August 2010 Board hearing, in which the Veteran's then-representative argued that the right ear hyperacusis should be rated analogous to Meniere's disease, under DC 6205. Further, the Board has considered the April 2015 VA examination report which indicates that the Veteran's disorder could be analogous to impairment of the vestibulocholear nerve (eighth cranial nerve). A note to 38 C.F.R. § 4.124a , provides that disability from impairment of the second, third, fourth, sixth, and eight cranial nerves will be rated under the Organs of Special Sense. Under DC 8207 (impairment of the seventh cranial nerve), moderate incomplete paralysis is rated as 10 percent disabling. A 20 percent disability rating is warranted for severe incomplete paralysis. Complete paralysis of the seventh cranial nerve warrants a 30 percent disability rating. 38 C.F.R. § 4.124a. Under DC 6204 (peripheral vestibular disorder), a 10 percent disability rating is warranted for peripheral vestibular disorders with occasional dizziness. A 30 percent disability rating is warranted for peripheral vestibular disorders with dizziness and occasional staggering. A Note to Diagnostic Code 6204 indicates that objective finings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined. 38 C.F.R. § 4.87. Under DC 6205 (Meniere's Disease), a 30 percent rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus. A 60 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. A 100 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. A Note to DC 6205 provides that Meniere's syndrome can be evaluated either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder (DC 6204)), hearing impairment (38 C.F.R. § 4.85), and tinnitus (DC 6260), whichever method results in a higher overall evaluation. But a combined evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under DC 6205 is inappropriate. 38 C.F.R. § 4.87. In this case, the Veteran has reported symptoms of ear pain, dizziness and falling down, associated with his hyperacusis, going back to October 1975. See e.g. June 2011 VA examination report. VA and private treatment records dated since the effective date of service connection (and earlier), have consistently noted the Veteran's reports that he must wear ear plugs at all times or else he becomes dizzy and falls down. For example, a June 2001 VA treatment record notes the Veteran's report that without the ear plugs, he feels as though he is spinning, loses his balance, and falls down. The Veteran also reported to the April 2015 VA examiner that when he feels dizzy, he also feels like he is going to faint and feels like his head is moving around. The April 2015 VA examiner noted the Veteran's report that the symptoms last for a few seconds to a minute and afterward he feels completely normal. Regarding the frequency of falls, the Veteran has consistently reported, since the effective date of service connection, that even with ear plugs, he becomes dizzy and falls down several times per month. See e.g. August 2010 hearing testimony page 8 (episodes two or three times per month, sometimes more frequently), December 2010 private treatment record (two to four times per month), June 2011 VA examination report (falls two to three times per month since October 1975), April 2015 VA examination report (falls once or twice per month). The April 2015 VA examination report also noted the Veteran's report that the falling down episodes are always precipitated by noise. He has also reported that wind can trigger an episode. Additionally, VA and private treatment records indicate the Veteran's reports of occasions where he became dizzy and felt like he was going to faint, which the Veteran refers to as "fainting spells," even though he admits he did not actually lose consciousness. See e.g. October 2012 VA treatment record. Previously, there was a question of whether the Veteran's dizziness, falling down, and/or "fainting spells" were associated with his hyperacusis, which is partly what prompted the September 2012 Board remand. There is no longer any question that the symptoms are associated with his service-connected hyperacusis. In this regard, a February 2013 VA neurology consult found the Veteran's falls, or spells where the Veteran felt like he might faint, to be suspicious for cardiovascular involvement. However, the February 2013 VA neurologist noted that if cardiovascular causes were ruled out, then the Veteran should receive treatment regarding noise exposure as noise seemed to trigger all of the Veteran's symptoms. A subsequent April 2013 letter from the VA medical center indicates that the Veteran had a normal echocardiogram. Further, the April 2015 VA examiner did not indicate any continued suspicion that the Veteran's symptoms were unrelated to hyperacusis. Based on the foregoing, the Board resolves any doubt and considers all of the Veteran's reported symptoms (including dizziness, falling down, feeling as if he is going to faint, and feeling his like his head is moving around), to be associated with his hyperacusis. Applying the Veteran's reported symptoms to the rating criteria described above, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a 30 percent disability rating, but no higher, under Diagnostic Code 6204, as analogous to a peripheral vestibular disorder with dizziness and occasional staggering. As noted under 38 C.F.R. § 4.124a, impairment of the eighth cranial nerve should be rated under the organ of the special sense, here the rating codes addressing the ear. Additionally DC 6204 best describes the Veteran's contended symptoms. The Board emphasizes the Veteran's consistent reports of dizziness accompanied by occasional falling down, since the effective date of service connection. The Board considers the spells in which the Veteran felt like was going to faint, as well as the actual falls, to be analogous to "occasional staggering" mentioned in DC 6204 in support of a 30 percent rating. With respect to the Note that accompanies Diagnostic Code 6204 regarding the requirement for objective evidence to support a diagnosis of vestibular disequilibrium, the Board notes that such requirement is satisfied by the April 2015 VA examination report which associates the Veteran's dizziness and falling down with impairment of the vestibuchoclear nerve. See also December 2010 private treatment record which noted that the Veteran has dysequilibrium two to three times per week. Further, the Board finds that the assignment of the 30 percent disability rating does not violate Note (1) to DC 6260 regarding the assignment of a rating under DC 6204 separate from a rating for tinnitus. In this regard, a finding regarding the existence, or severity, of tinnitus is not necessary to support the rating for the peripheral vestibular disorder with dizziness and occasional staggering. A rating in excess of 30 percent for hyperacusis is not warranted, however. In this regard, there are no higher schedular ratings available under DCs 6204 or 8207. Further, although higher ratings are available under DC 6205 for Meniere's disease, the Board finds that the Veteran is not entitled to a higher rating under DC 6205, analogous to Meniere's disease. In this case, there is evidence in support of, and against, a finding that the Veteran's symptoms are analogous to Meniere's disease but the Board finds that the weight of the evidence is against the contention. Weighing against the claim is the April 2015 VA examination report. Following review of all of the evidence of record, interview with the Veteran, pneumatic otoscopy as well as tests of the Veteran's response to loud noises, the examiner determined that the Veteran's hyperacusis was not analogous to Meniere's disease. The April 2015 VA examiner explained that hyperacusis and Meniere's disease are separate and distinctly different clinical entities. In this regard, the examiner explained that Meniere's is a syndrome while hyperacusis is a symptom. (Emphasis added). The April 2015 VA examiner explained that Meniere's is a well-described clinical syndrome that manifests as recurring, discrete episodes of unilateral ear pressure accompanied by roaring tinnitus, hearing loss, and vertigo. The examiner also noted that episodes typically present with sudden onset and last hours to days. The examiner explained that the syndrome is generally chronic and invariably progressive. The examiner also noted that the underlying causes of Meniere's disease were felt to be related to salt and/or fluid imbalances within the inner ear causing physical pressure on the membranes of the inner ear. The examiner noted that the Veteran's history was not suggestive of Meniere's disease. The April 2015 VA examiner also explained that hyperacusis is a symptom that clinically has been seen in a variety of conditions that affect the inner ear, including Meniere's disease, but that the Veteran's history is not especially suggestive of any of the conditions. The examiner also explained that hyperacusis can be a symptom of damage or irritation to the eighth cranial nerve and that in this case, the Veteran's symptoms are analogous to impairment of the vestibulocholear nerve (eighth cranial nerve). The examiner added that associated symptoms of vestibulocochlear nerve impairment or neuropathy can include hearing loss, tinnitus, hyperacusis, and some types of dizziness or vertigo. As discussed above, the examiner did not make any finding that the Veteran's contended symptoms were not associated with the Veteran's service-connected disability manifested by right ear hyperacusis. The Board places a high probative value on the April 2015 VA examiner's opinion as he provided detailed rationale for the opinion and considered all of the Veteran's symptoms and audiological history, in comparison with the examiner's medical knowledge. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Moreover, the April 2015 VA examiner's opinion is consistent with other evidence of record. Specifically, there is no lay or medical evidence of pressure on the Veteran's inner ear. Nor is there evidence or suggestion of any salt or fluid imbalance within the inner ear. To the contrary, despite the Veteran's complaints of ear pain with noise, he has not described a feeling of pressure in the ear. Further, treatment records do not indicate any findings of fluid imbalance in the ear. In this regard, private treatment records consistently noted that both middle ears were well-aerated with no effusion. See e.g., December 2010 record from Dr. S.L. which noted normal middle ear pressure. Similarly, the April 2009 VA examination report noted external ears, canals, tympanic membranes, tympanums, and mastoids were all normal and that fistula tests were negative. The December 2010 VA audiological examination report noted normal middle ear pressure and right ear testing demonstrated normal cochlear function. Moreover, testing during the April 2015 VA examination revealed clear auditory canals and normal tympanic membranes with no obvious effusions. Further, while the Veteran complains of dizziness and falling down several times per month, the reported duration of the episodes has been inconsistent. The Board acknowledges that on one occasion, he reported a duration of vertigo lasting one to two hours. See December 2010 private treatment record from Dr. S.L. However, during the April 2015 VA examination, he reported that the episodes of feeling dizzy, like he is going to faint and that his head is moving around, typically lasts for a few seconds to a minute and that afterwards he feels completely normal. In his statements in support of his claim, he has not specified the duration of the episodes. The variation in the Veteran's reports indicates that the Veteran's episodes are not consistently in the range of duration associated with Meniere's disease, namely a duration of hours to days. The Board acknowledges that a private otolaryngologist, Dr. S.L., indicated that the Veteran's hyperacusis disorder is analogous to Meniere's disease, and that such statement was rendered during the treatment session in which the Veteran reported a duration of vertigo lasting one to two hours. However, Dr. S.L. did not offer any explanation for the statement. See December 2010 treatment record from Dr. S.L. Additionally, the remaining distinguishing characteristics of Meniere's disease, as described by the April 2015 VA examiner, have not been shown in VA or private treatment records. Again, the Veteran has reported much shorter duration of the episodes since December 2010. Further, Dr. S.L. has proven to be an unreliable source for medical opinions as he provided another medical opinion of record that was found to be incorrect. Specifically, an April 2008 letter from Dr. S.L. indicates that the Veteran's hyperacusis was caused by his sensorineural hearing loss. However, the April 2009 VA examiner addressed Dr. S.L.'s opinion and found that it was not accurate and did not reflect the Veteran's description of his symptoms expressed on multiple occasions and documented in the file. The examiner explained by definition, hyperacusis differs from recruitment which accompanies sensorineural hearing loss. Thus, given that Dr. S.L. previously provided an inadequate opinion of record and Dr. S.L. did not provide any rationale for the statement at issue - that the Veteran's disorder is analogous to Meniere's disease - the Board affords Dr. S.L.'s December 2010 statement limited probative value. The Board has also reviewed the medical journal articles submitted by the Veteran in August 2010. The Board acknowledges that one of the articles indicates that Meniere's disease may cause hyperacusis. However, the medical journal article contained only a generic description of hyperacusis and indicated several other causes for hyperacusis. The Board assigns the article limited probative value as it is not specific to the facts of this case. Moreover, the April 2015 VA examiner also acknowledged that hyperacusis can be a symptom of Meniere's disease, but the examiner explained why he did not feel that the Veteran's hyperacusis was analogous to Meniere's disease. Further, the Board notes that the February 2013 VA neurologist indicated that the Veteran's symptoms likely arose from the periphery and in particular, the inner ear. The Board finds that such statement supports the 30 percent rating for the peripheral vestibular disorder and does not contradict the April 2015 examiner's opinion regarding Meniere's disease. The Board finds that the April 2015 VA examiner's opinion outweighs the statement by Dr. S.L. as well as the medical journal article which only discussed the broad range of causes of hyperacusis and not the specific facts of the Veteran's case. In this regard, the Board places a higher probative value on the April 2015 VA examination report because the April 2015 VA examiner addressed the specific facts of the Veteran's case and explained why hyperacusis is not analogous to Meniere's disease in this case, but rather is analogous to impairment of the vestibulocochlear nerve. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001) (holding that, when confronted with conflicting medical opinion evidence, the Board can favor one opinion over another as long as it adequately explains its reasoning). Based on the foregoing, the weight of the evidence is against the application of a rating as analogous to Meniere's disease. Further, even if the Board were to rate the case as analogous to Meniere's disease, VA and private treatment records do not suggest that the Veteran had a cerebellar gait at any time - a criterion listed for the next-higher 60 percent and 100 percent disability ratings under DC 6205. The Board acknowledges the Veteran's statement in January 2008 that without ear plugs he cannot stand up straight or walk; but no cerebellar gait has been noted in the clinical records. See June 2007 and April 2008 VA treatment records which noted a normal gait. The April 2009 VA examiner noted that the Veteran's tandem gait was abnormal but significantly, did not indicate that the Veteran had a cerebellar or ataxic gait. Further, the April 2015 VA examiner specifically found that "no ataxic gait is noted." Additionally, as discussed in the note to DC 6205, when rating Meniere's disease, the different aspects of the disability are to be rated separately if that results in a higher combined rating. Here, the assignment of separate disability ratings for the Veteran's bilateral hearing loss (10 percent) and tinnitus (10 percent), in addition to the 30 percent rating for hyperacusis, under DC 6204, results in a higher (40 percent) combined evaluation for the Veteran than a single 30 percent disability rating under DC 6205 for all of the symptoms combined. See Note to DC 6205. Again, the Board emphasizes that the Veteran has expressed his belief that he is entitled to a 30 percent disability rating for daily dizziness and falling down. See the Veteran's statements dated in January 2009, May 2011, and June 2011. The Board acknowledges that the Veteran's former representative argued that the Veteran's hyperacusis should be rated as at least 30 percent disabling, if not higher. See August 2010 hearing transcript page 3. However, for all of the foregoing reasons, the Board finds that the Veteran is entitled to a 30 percent disability rating, but no higher, under DC 6204. In reaching the decision to grant an increase to 30 percent disability rating, but no higher, the Board has considered the Veteran's statement that he has worn ear plugs since October 1975 due to his hyperacusis, as well as his statements regarding pain, dizziness, falling down, feeling as if he is going to faint at times, and feeling like his head is moving around, all associated with the hyperacusis. The Board notes that the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). To the extent that his statements are competent, the Board finds the statements to be credible. Indeed, the Veteran's statements regarding his symptoms are a large part of why the Board has granted the increased initial rating. However, in this case, the competent medical evidence offering detailed, specific determinations pertinent to facts of this case and the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. The medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Additionally, the Board has contemplated whether the claim should be referred for extra-schedular consideration. With respect to the first prong of Thun, supra, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for hyperacusis is inadequate. A comparison between the levels of severity and symptomatology of the Veteran's right ear hyperacusis with the established criteria found in the rating schedule for disorders analogous to hyperacusis shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The Board acknowledges that there is not a specific rating code for hyperacusis but finds that the analogous code for peripheral vestibular disorders is sufficient in this case. The 30 percent evaluation for right ear hyperacusis is an acknowledgement of the need to wear ear plugs and the symptoms (including but not limited to pain, dizziness, falling down, and feeling as if he is going to faint) that accompany the disorder and its interference to some extent with daily and occupational functioning. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. In any event, the Board observes that, even if the analogous schedular evaluation for the Veteran's hyperacusis were inadequate [which it manifestly is not], the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms," nor does he so contend. The Board has been unable to identify an exceptional or unusual disability picture, and neither has the Veteran. In reaching this conclusion, the Board has considered the Veteran's reports noted above, including that he regularly experiences dizziness, falls down and/or feels as if he is going to faint, multiple times per month, and that he has to wear ear plugs and cotton balls to protect his ears from pain due to loud noise and to minimize dizziness, loss of balance, and falling down. Moreover, the Board has considered his contention that his disability affects his ability to work in industry and that wearing ear plugs affects his ability to talk/listen to people at work. See August 2010 Hearing Transcript page 11. However, the Board finds that the functional effects caused by the Veteran's hyperacusis do not constitute any exceptional or unusual disability picture warranting consideration of an extraschedular rating. To the extent that the Veteran's hyperacusis affects his employability, such is addressed in the remand below regarding entitlement to a TDIU on an extraschedular basis. Further, the Board has also considered the application of Johnson, supra, where a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. However, in this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific service-connected disability. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. In short, there is nothing in the record to indicate that the Veteran's service-connected hyperacusis causes impairment over and above that which is contemplated in the assigned schedular rating. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In sum, the Board finds that the preponderance of the evidence is against the Veteran's claim for a higher initial rating for his tinnitus, and while an initial rating of 30 percent for the entire appeal period is warranted for hyperacusis, the preponderance of the evidence is against an even higher initial rating for such disability. Therefore, in denying such increased ratings, the benefit of the doubt doctrine is not applicable and the claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An evaluation in excess of 10 percent for tinnitus is denied. A rating of 30 percent, but no higher, for right ear hyperacusis is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND With respect to the claim of entitlement to a TDIU, VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). In this case, the Veteran's service connected disabilities are currently rated as follows: seborrheic dermatitis of the scalp (rated as 10 percent disabling, effective August 9, 1975), bilateral hearing loss (rated as 10 percent disabling, effective January 18, 1977), right ear hyperacusis (rated as 30 percent disabling, effective January 17, 2002), and tinnitus (rated as 10 percent disabling, effective September 14, 2009). The combined rating is 40 percent, effective January 17, 2002, and 50 percent effective September 14, 2009. Thus, his disability ratings do not meet the criteria set forth above to support a schedular TDIU. However, as discussed, he may be entitled to an extraschedular TDIU under 38 C.F.R. § 4.16(b). For many years, the Veteran has asserted that he is unemployable due to his service connected ear disabilities. The Veteran has also reported that he stopped working once he began receiving disability benefits from the Social Security Administration (SSA). Parenthetically, the Board notes that the Veteran was awarded SSA disability benefits for nonservice connected mental disorders. In his May 2011 VA Form 21-8940 Application for Increased Compensation Based on Unemployability as well as additional statements of record, he has indicated that his disabilities affected full time employment in 1975 and that he lasted worked full time in 1987. Significantly, the October 2014 VA examiner opined that based on the severity of the Veteran's hearing loss, his inability to localize sound, and his sensitivity to all sound, it is as least as likely as not these factors would prevent the Veteran from obtaining and maintaining secure and gainful employment in both industrial and sedentary settings. In light of the October 2014 VA examiner's opinion, the Board finds that the AOJ must refer the claim to the Director of Compensation and Pension to determine if an extraschedular rating is warranted for TDIU under 38 C.F.R. § 4.16(b). In this regard, the Board does not have jurisdiction to assign an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although Bagwell and Floyd only dealt with ratings under § 3.321(b)(1), the analysis in those cases is analogous to TDIU ratings under § 4.16(b) in view of that section's similar requirement of referral to the Director of VA's Compensation and Pension Service for extra-schedular consideration for all veterans who are unemployable by reason of service-connected disabilities but fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Accordingly, the case is REMANDED for the following action: 1. Pursuant to the provisions of 38 C.F.R. § 4.16(b), refer the Veteran's claim for TDIU to the Director, Compensation Service, for extraschedular consideration. Such consideration should include a discussion of the Veteran's service-connected disabilities, employment history, and educational/vocational history. 2. If the Veteran's claim for TDIU is not granted to his satisfaction, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs